As The National Law Journal reports, “For years, parties on both sides of ITC cases have struggled with customs officials over how to enforce exclusion orders. Enforcement decisions tend to be based in part on one-sided, confidential meetings in which each party argues about which products should—and should not—be let into the country.” Finnegan partner Smith R. Brittingham, IV provided insight on exclusion order enforcement. “It’s like going into a black box,” he said. “The real issue is, you spend months or a year or two years and millions of dollars [at the ITC] proving your patent is valid and your opponent’s product infringes. And then you go to Customs, and you don’t know what they’re doing or why they decide not to exclude a product.” In June, the White House announced a task force that would review enforcement of exclusion orders in an effort to make the process “transparent, effective, and efficient.” Brittingham told the NLJ, “What people really want is consistency and predictability . . . and as much transparency as possible.”
